EP NO. 97 OF 2012; In the matter of the Organic Law on National and Local-Level Government Elections and in the matter of a Disputed Return for the Seat of Jiwaka Provincial Electorate in the 2012 General Election; Jamie Maxton-Graham v Electoral Commissioner of Papua New Guinea and Dr. William Tongamp (2013) N5134

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 05 April 2013
• Court: National Court
• Citation: (2013) N5134
• Year: 2013
• Judgement Number: N5134

Full Title: EP NO. 97 OF 2012; In the matter of the Organic Law on National and Local-Level Government Elections and in the matter of a Disputed Return for the Seat of Jiwaka Provincial Electorate in the 2012 General Election; Jamie Maxton-Graham v Electoral Commissioner of Papua New Guinea and Dr. William Tongamp (2013) N5134

National Court: David, J

Judgment Delivered: 5 April 2013

N5134

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 97 OF 2012

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS AND IN THE MATTER OF A DISPUTED RETURN FOR THE SEAT OF JIWAKA PROVINCIAL ELECTORATE IN THE 2012 GENERAL ELECTION

BETWEEN:

JAMIE MAXTON-GRAHAM

Petitioner

AND:

ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA

First Respondent

AND:

DR. WILLIAM TONGAMP

Second Respondent

Minj: David, J

2013: 3 & 5 April

ELECTION PETITIONS – PRACTICE & PROCEDURE – applications to dismiss two notices of objection to competency of petition – notices of objection to competency of petition filed outside 21 days of service of petition – failure to comply with time limitation prescribed by Practice Direction 2 of 2012 – failure to comply with Court direction as to time fixed for filing and service of written submissions – exercise of power under Rule 18 Election Petition Rules discretionary – discretion to be exercised on proper principles – question of competency of petition can be raised at any stage of proceedings by a party or by Court – once question of competency raised either by written notice or orally as it relates to jurisdiction, it must be determined – filing of notices of objection to competency of petition out of time does not warrant dismissal – non-compliance with direction to file and serve written submissions not a proper basis to dismiss objections – law in relation to practice and procedure governing election petition proceedings is found in the Organic Law on National and Local-level Government Elections and any regulations made under it – Section 155 (4) Constitution has no application - National Court Rules have no application particularly if inconsistent with any provision of statute - rules of practice and procedure subservient to mandatory requirements in Organic Law on National and Local-level Government Elections – discretion exercised in favour of refusing applications - Organic Law on National and Local-level Government Elections, Part XVIII Div.1 (Sections 206-227) –National Court Election Petition Rules 2002 (as amended), Rules 15 & 18 – Practice Direction (Election Petitions) No.2 of 2012.

Cases cited:

Delba Biri v Bill Ginbogl Ninkama (1982) PNGLR 342

Holloway v Ivarato [1988] PNGLR 99

Patterson Lowa v Wapula Akipe (1992) PNGLR 399

Peri v Agiwa, SCR 13 of 1998, (1998), Unreported & Unnumbered Judgment of the Supreme Court

Ginson Saonu v Bob Dadae (2004) SC763, PGSC12

Daniel Don Kapi v Samuel Abal (2005) N2856, PGNC101

Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853, PGSC1

Sir Arnold Amet v Peter Charles Yama (2010) SC1064, PGSC46

Edward Ekanda Alina v Francis Mulunga Potape (2012) N4877, PGNC252

Sani Rambi v Koi Trappe (2012) N4924, PGNC218

Nemo Yalo v Aiya James Yapa Lagea (2012) N4937, PGNC216

Walter Schnaubelt v Byron Chan (2012) N4791, PGNC211

Nobert Kubak v Andrew Trawen (2012) N4992, PGNC286

Patrick Basa v Bob Dadae (2013) N4991

Soroi Marepo Eoe v Mark Ivi Maipakai (2013), Unreported & Unnumbered Judgment of Cannings, J delivered at Waigani on 26 February 2013

Counsel:

Tony Yamarhai, for the Petitioner

Ray William, for the First Respondent

Michael Kuma, for the Second Respondent

RULING ON APPLICATIONS TO STRIKE OUT OBJECTIONS TO THE COMPETENCY OF PETITION

5 April, 2013

1. DAVID, J: The petitioner, Jamie Maxton-Graham is an unsuccessful candidate for the seat of the Jiwaka Provincial Electorate in the Jiwaka Province (the Electorate) during the 2012 National General Election. The Second Respondent, Dr. William Tongamp was the successful candidate for the Electorate and is now the Member of Parliament for the Electorate.

2. On 9th September 2012, pursuant to Section 206 of the Organic Law on National and Local-level Government Elections (the Organic Law), the petitioner filed his petition disputing the validity of the election or return of the Second Respondent as the successful candidate for the Electorate.

3. On 25th October 2012, the Second Respondent filed his notice of objection to competency of the petition.

4. On 2nd November 2012, the First Respondent, the Electoral Commissioner of Papua New Guinea filed his notice of objection to competency of the petition.

5. At the pre-trial conference conducted on 26th November 2012, the Court constituted by the Judge Administrator for the Election Petitions Track, Makail, J issued a number of orders intended to progress and expedite the proceedings to a trial.

6. This is a ruling on two applications made by the petitioner to strike out the two notices of objection to the competency of the petition.

7. I will deal with the applications together.

8. The first application was made pursuant to an amended notice of motion filed on 8th February 2013 (the first application) and is supported by the affidavit of Tony Yamarhai sworn on 4th February 2013 and filed on 6th February 2013. The main relief sought is pleaded at Item 1 of the amended notice of motion and it reads:

“Pursuant to Rule 18 (ii) and (iii) of the National Court Election Petition Rules and Order 12 Rule 1 of the National Court Rules and Section 155 (4) of the Constitution, the First Respondent’s Notice of Objection to Competency filed on 2nd November 2012 and Second Respondent’s Notice of Objection to Competency filed on 25th October 2012 be struck out for non-compliance of this Court’s Orders of 26th November 2012.”

9. The second application was made pursuant to a notice of motion filed on 25th March 2013 (the second application) and is supported by the affidavit of Tony Yamarhai sworn on 21st March 2013 and filed on 25th March 2013. The main relief sought is pleaded at Item 1 of the notice of motion and it reads:

“Pursuant to Rule 18 (ii) of the National Court Election Petition Rules, Practice Direction (Election Petitions) No.2 of 2012, Order 12 Rule 1 of the National Court Rules and Section 155 (4) of the Constitution, the Notice of Competency to the Petition filed by the First Respondent on 2nd November 2012 be dismissed.”

10. The Respondents contest the applications. They have not filed any affidavit in response to the applications.

11. With respect to the first application, the petitioner argues that the Respondents having failed to comply with the fourth order of the orders made on 26th November 2012, i.e., to file and serve their written submissions with respect to their objections to the competency of the petition by or before 4th January 2013, their notices of objection should be struck out so that it paves the way for the petition to be set down for an expedited hearing. Counsel argued that failing to comply with Court directions was fatal to a party to whom the directions are directed, more particularly in the absence of any reasonable explanation by affidavit for non-compliance.

12. Mr. Yamarhai of counsel for the petitioner has referred me to a number of cases which emphasize the need to comply with Court directions and time limits fixed by the Court and the National Court Election Petition Rules 2002 (as amended) (the Election Petition Rules) because of the special nature of proceedings involving election petitions which calls for their speedy disposition. These are; Peri v Agiwa, SCR 13 of 1998, (1998), Unreported & Unnumbered Judgment of the Supreme Court; Daniel Don Kapi v Samuel Abal (2005) N2856, PGNC101; Edward Ekanda Alina v Francis Mulunga Potape (2012) N4877, PGNC252; Sani Rambi v Koi Trappe (2012) N4924, PGNC218; Nemo Yalo v Aiya James Yapa Lagea (2012) N4937, PGNC216; Walter Schnaubelt v Byron Chan (2012) N4791, PGNC211; Nobert Kubak v Andrew Trawen (2012) N4992, PGNC286; and Soroi Marepo Eoe v Mark Ivi Maipakai (2013), Unreported & Unnumbered Judgment of Cannings, J delivered at Waigani on 26 February 2013. I have considered these cases.

13. With respect to the second application, the petitioner argues that the First Respondent’s notice of objection to competency of the petition was filed outside the time prescribed by Practice Direction (Election Petitions) No.2 of 2012 (Practice Direction No.2) therefore should be dismissed.

14. The First Respondent contends that the two applications should be refused on the basis that:

1. the petitioner has not been prejudiced by his non-compliance with the particular Court direction in that his notice of objection to competency had been filed and served on the petitioner and the petitioner has responded to the matters raised in his notice of objection to competency by filing his written submissions on 5th March 2013;

2. having raised the issue of competency of the petition which relates to the jurisdiction of the Court, irrespective of whether or not Practice Direction No.2 was complied with, and which by settled...